Alston v. Town of Brookline

United States District Court, D. Massachusetts

September 30, 2016

GERALD ALSTON, JUANA BAEZ, ROGELIO RODAS, CRUZ SANABRIA, DEMETRIUS OVIEDO, and DEON FINCHER, on behalf of themselves and all others similarly situated, Plaintiffs,v.TOWN OF BROOKLINE, MASSACHUSETTS; BROOKLINE BOARD OF SELECTMEN; BETSY DEWITT, in her individual and official capacities; KENNETH GOLDSTEIN, in his individual and official capacities; NANCY DALY, in her individual and official capacities; JESSE MERMELL, in her individual and official capacities; NEIL WISHINSKY, in his individual and official capacities; SANDRA DEBOW, in her individual and official capacities; JOSLIN MURPHY, in her individual and official capacities; STANLEY SPIEGEL; and LOCAL 950, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, Defendants.

ORDER
ON REPORT AND RECOMMENDATION

George
A. O'Toole, Jr. United States District Judge

The
magistrate judge to whom this matter was referred has filed a
Report and Recommendation (dkt. no. 72) ("R&R")
recommending that plaintiff Gerald Alston's claims be
severed from the claims asserted by the other named
plaintiffs and that the claims of the other named plaintiffs
be dismissed without prejudice. As to the named defendants,
the R&R further recommends that Alston's claims
against all defendants except Stanley Spiegel be dismissed
without prejudice and with leave to replead those claims in a
manner consistent with the requirement of Federal Rule of
Civil Procedure 8(a)(2) (requiring "a short and plain
statement of the claim showing that the pleader is entitled
to relief). The R&R further recommends that Alston's
claims against Spiegel be dismissed with prejudice pursuant
to Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim upon which relief can be granted. The
plaintiffs filed objections to the R&R (dkt. no. 73), and
the defendants filed a response to those objections (dkt. no.
74).

Having
reviewed the relevant pleadings and submissions, I approve
and ADOPT the magistrate judge's recommendation with the
sole exception of her recommendation that Alston's claims
against Spiegel be dismissed with prejudice. Since the
plaintiff is being granted leave to replead against the other
defendants, I think it is fair to give him a chance to
replead his claims against Spiegel as well.

Accordingly,
the defendants' Motions to Dismiss (dkt. nos. 34, 36, 45,
and 52) are GRANTED to the extent described above, and the
present complaint is dismissed without prejudice. Alston is
granted leave to file an amended complaint stating claims
personal to him. Any amended complaint shall comply with the
pleading requirements of the Federal Rules of Civil
Procedure, and shall be filed not later than 21 days from the
entry of this Order.

In this
putative class action, six named plaintiffs allege a host of
violations of 42 U.S.C. § 1981 and § 1983 against
the Town of Brookline ("the Town"), the Brookline
Board of Selectmen ("the Board"), and Local 950,
International Association of Firefighters ("the
Union"); and violations of 42 U.S.C. § 1981, §
1983, and § 1985 against certain members of the Board in
their official and individual capacities ("the Town
individual defendants") and against Stanley Spiegel, who
is a Town Meeting Member. (Amended complaint, #21 at
¶¶ 81-84.) The 85-page, 270-paragraph amended
complaint states at the outset that the plaintiffs
"bring this claim on behalf of themselves and all others
who have been damaged by Brookline's longstanding and
well-established policy, custom and practice of opposing
racial equality, enforcing racial subordination, engaging in
affirmative action and favoritism towards [W]hite residents
and employees, and retaliating against persons who protest
racial discrimination." Id. at ¶ 2.

Plaintiffs
are represented by one attorney, Brooks Ames, who filed the
original complaint on December 1, 2015, on behalf of one
plaintiff, Gerald Alston, a Brookline firefighter alleging
civil rights violations. (#1.) On January 26, 2016, the
amended complaint was filed, adding seven more plaintiffs.
(#21.) Two of them, Officers Prentice Pilot and Estifanos
Zerai-Misgun of the Brookline Police Department, filed
Notices of Voluntary Dismissal on February 8, 2016. (##30,
31.)[1]

The
allegations concerning each plaintiff are set out in detail
below, but in short, the plaintiffs consist of Gerald Alston,
a Brookline firefighter who allegedly was discriminated
against because he is Black[2] and then suffered retaliation for
speaking out about it; Cruz Sanabria, a Hispanic Brookline
resident who allegedly was falsely charged with a crime in
Brookline, among other retaliatory acts, for speaking out
against racism; Juana Baez, a Hispanic Brookline resident who
allegedly had a violent encounter with a tow truck driver and
a Brookline police officer; Rogelio Rodas, a Hispanic
Brookline resident who allegedly was assaulted by a Brookline
police officer; Demetrius Oviedo, a Brookline resident whose
ethnicity is never stated in the amended complaint, who
passed the civil service exam to become a Brookline
firefighter but was not hired for allegedly discriminatory
reasons and who also had problems with the Brookline police;
and Deon Fincher, a Black sanitation worker in Brookline who
claims he was treated differently on the job than were
White[3] workers.

Plaintiffs
allege that the Town's policy of "disregarding the
Fourteenth Amendment" violated their constitutional
rights. (#21 at ¶ 124.) The policy "has kept free
Black people out of Brookline for centuries, " as
evidenced by the fact that only 3% of the population of
Brookline is Black. Id. at ¶ 130. The amended
complaint lists various committees that the Town has
established from 1953 to the present to address issues
concerning racism and argues that in fact these efforts
"suppress racial equality and enforce racial
subordination." Id. at ¶ 134. Plaintiffs
set out numerous incidents of lenient treatment afforded to
White people, such as an instance where an unnamed employee
from the department of public works was not terminated for
getting a criminal conviction, or an instance where a White
person was promoted over a Black person with superior
qualifications for a "senior administrator
position" in the Town. Id. at ¶¶
136-157.

In a
section entitled "The Board of Selectmen Fight to
Protect & Conceal the Policy, " the amended
complaint relates instances where the Board thwarted unnamed
citizens' efforts to expose and change "the
Town's unconstitutional policy."[4]Id. at
¶¶ l 59-173.

The
amended complaint asserts that "the Town Defendants'
unconstitutional policy practice and custom caused Plaintiffs
to suffer damages compensable pursuant to 42 U.S.C. §
1981 and § 1983" and "the individual
defendants violated 42 U.S.C. § 1981, 1983, and 1985 by
enforcing the Town's unconstitutional policy, practice,
and custom, " "by retaliating against Plaintiffs
for opposing the Town's unconstitutional and racist
policy, " and "by discriminating against Plaintiffs
on the basis of race." Id. at ¶¶ 254,
25 8, 260-61. Plaintiffs seek declaratory judgment against
all defendants, a finding that Article 3.14 of the Town's
bylaws violates the U.S. Constitution, compensatory and
punitive damages, class certification, establishment of a
reparations fund, costs and attorney's fees. (#21 at
¶ 84.)

This
report and recommendation addresses the motions to dismiss
filed by all defendants. (##34, 36, 48, 53). Plaintiffs
opposed the motions to dismiss (##40, 56, 64), and all
defendants replied. (##65, 68, 71.)

For the
reasons set out below, the court recommends as follows:

1. The
District Court should exercise its discretion under
Fed.R.Civ.P. 20 and 21 to sever Mr. Alston's case from
the cases of the other named plaintiffs, as the
plaintiffs' cases do not meet the criteria under
Fed.R.Civ.P. 20 (a)(1) to be tried together in the same
action. The District Court should dismiss all but the first
named plaintiff without prejudice to the filing of new,
separate lawsuits by the dropped plaintiffs.[5]See Cruz v.
Bristol-Myers Squibb Co., PR,699 F.3d 563, 569 (1st
Cir. 2012).

2. With
regard to the remaining plaintiff, Mr. Alston, the District
Court should dismiss his claims against all defendants except
Spiegel, without prejudice and with leave to replead, for
failure to comply with the threshold test of Fed.R.Civ.P. 8:
that a plaintiff must set forth a "short and plain
statement" of his claims showing that he is entitled to
relief.

3.
Alston's claims against Spiegel should be dismissed with
prejudice for failure to state a claim under Fed.R.Civ.P.
12(b)(6).

II.
Facts

The
facts as alleged in the amended complaint are as follows.

A.
Defendants

Defendant
Town of Brookline "is a duly organized town in the
Commonwealth of Massachusetts... headed by an elected
five-member Board of Selectmen and a representative town
meeting." (#21 at ¶ 110.)

Defendant
Brookline Board of Selectmen comprises elected officers of
the Town. Id. at ¶ 111. The Selectmen serve as
the Police and Fire Commissioners, and hold ultimate
decisionmaking power for hiring, firing, promotion, demotion,
and disciplinary suspension of Brookline police officers and
firefighters. Id. at ¶111. They also hold
authority to hire and fire Town employees such as the town
administrator, town counsel, director of human resources,
police chief, and fire chief. Id. They adopt and
oversee Town administrative policies, and appoint and serve
on committees to address Town issues. Id. The
elected Chair of the Brookline Board of Selectmen
("Chair") sets the agenda for the Board and
communicates with administrative staff. Id.

At some
time relevant to this suit, DeBow was the Town's human
resources director, Murphy was town counsel, and Spiegel was
a town meeting and advisory committee member. Id. at
¶¶ 119, 120, 208. The remaining individual
defendants, DeWitt, Goldstein, Daly, Mermell, and Wishinsky,
served on the Board. Id. at ¶¶ 112-16.

B.
Plaintiff Gerald Alston

1.
Pender Voicemail and Investigation

Gerald
Alston, who is Black, joined the Brookline Fire Department in
2002. (#21 at ¶102.) On May 28, 2010, Alston was injured
at work and heard "rumors that his supervising officer,
Lt. Paul Pender, was claiming that [Alston] was faking his
injury to obtain leave." Id. at ¶175.
Pender enjoys privileges in Brookline because he is White and
because his father was a Brookline firefighter and boxer.
Id. at ¶176. On May 30, Pender left a voicemail
for Alston; at the end of the voicemail Pender said "fat
fuck" and "fucking nigger." Id. at
¶¶ 177-78. Pender later told Alston that the
comments were not directed at him, but rather at "a
gangbanger" or an "18-wheel truck that cut him off
in traffic." Id. at ¶181. Pender
considered the situation a joke, and accused Alston of having
a vendetta against him. Id.

Alston
reported the message to the Fire Department's chief
operating officer, who took no action. Id. at
¶¶ 179-80. On July 27, 2010, Alston filed a written
complaint with the Town, and met with the fire chief, town
counsel, and "human resources." Id. at
¶182. Upon hearing the message, town counsel said
"we have a problem." Id. The fire chief
offered to fire Pender, but Alston refused; the chief then
said he would make Pender ineligible for promotion.
Id. After this meeting, the Town transferred Pender
to a different firehouse and opened an investigation.
Id. at ¶ 184. During the investigation, the
Town pressured Alston to drop his complaint: the director of
human resources, defendant Sandra Debow, asked Alston in a
phone conversation "how long he wanted [Pender] to
suffer." Id. at ¶ 185. Alston told Debow
that he wanted the Town to follow its policies; she then
called Alston an "asshole" and hung up.
Id. The Union "spread rumors that Mr. Alston
had made a false allegation of racism against Mr.
Pender" and sent a representative to a meeting with
Debow and Alston. Id.

By
mid-August 2010, the entire Board knew of the voicemail and
investigation. Id. at ¶ 186. It gave Pender
"an extremely short suspension" with pay.
Id. at ¶187. A few days after the suspension,
the Town promoted Pender from lieutenant to acting captain.
Id. at ¶ 190. The Board then adopted a
"'zero tolerance' anti-discrimination
policy" which did not change the Town's process for
investigating discrimination complaints. Id. at
¶ 188. At a Board-ordered mediation between Pender and
Alston, Pender refused to shake Alston's hand or
apologize to him. Id. at ¶ 189. The Town
"arranged for" Pender and his family to fly to the
White House where Pender received an award; it did not inform
the White House of the investigation or suspension.
Id. at ¶ 190.

2.
Retaliation against Alston

The
Town and the Union "retaliated against Mr. Alston
because he protested the Town's policy of racial
subordination of [B]lack people and racial favoritism toward
[W]hite people." Id. at ¶ 191. The Board
and the Town "created a retaliatory and hostile work
environment" by training supervisors to "secretly
report workplace friction" with Alston; having human
resources prepare reports "portraying [Alston] as a
problem employee;" and painting Alston as a
"disruptive and overly-sensitive" person who
"imagin[ed] or fabricat[ed] complaints of harassment and
retaliation." Id. at ¶¶ 196-97. The
Union also retaliated against Alston, by "falsely
claiming that [his] complaint against Mr. Pender was
meritless and self-interested." Id. at
¶193. Alston "protested the Union's retaliation
against him but the Town did nothing to address it."
Id. at ¶ 195. Although Alston's doctor
recommended medical leave due to stress, the Town required
him to use sick time instead of granting paid leave.
Id. at ¶198.

Alston
filed a formal complaint with the Massachusetts Commission
Against Discrimination ("MCAD") and filed a lawsuit
in the Massachusetts Superior Court. Id. at
¶199. In response, the Town perpetrated "more
harassment and retaliation" against Alston. Id.
The Town conducted a sham investigation and produced a report
showing that Alston had fabricated his complaints.
Id. at ¶200. The Town "encouraged
supervisors to deny" retaliating against Alston.
Id. at ¶ 201. In spring 2013, while
Alston's MCAD complaint was pending, the Board voted to
make Pender's promotion permanent. Id. at ¶
203. The Town denied Alston promotions to acting lieutenant,
although he was "the senior man on the truck."
Id. at ¶ 204. At a committee meeting, defendant
Nancy Daly distributed a letter that had been sent to the
local Brookline newspaper. Id. at ¶207. The
letter "attacked [Alston's] courage and credibility,
" and "was solicited from a retired Black
firefighter for the purpose of retaliating against"
Alston. Id. The next day, defendant Stanley Spiegel
distributed the letter to town meeting members to provide
"'diversity' of opinion regarding the
lawsuit." Id. at ¶ 208. The Board
"blocked the human relations commission from
intervening, " and "refused to release the
Town's investigatory reports and clarify public
uncertainty." Id.

3.
"Leave" Incident

In
mid-December 2013, Alston found the word "Leave"
written on a door underneath his jacket. Id. at
¶ 210. Alston photographed the message and told other
firefighters "this is the kind of thing that makes
people go postal." Id. Alston said "he was
not like that though" and that "he was going to
make the Town pay legally." Id. The Union
reported the writing to the Town, the fire chief, the human
resources director and town counsel, but the Town did not
immediately investigate. Id. at ¶¶ 210-11.
Instead, because of his "going postal" comment, the
Town began a sham investigation of Alston under the workplace
safety policy, requiring him to have a fitness-for-duty
investigation with the Town psychiatrist. Id.
Further, the Town issued a stay-away order requiring Alston
to stay away from the Town's firehouses. Id. at
¶¶ 215-16. The Union asked for police officers to
be posted at the firehouses, but the fire chief refused.
Id. at ¶ 216.

Three
months after the writing, the Town called Alston for an
interview, but refused to allow his attorney to attend.
Id. at ¶ 213. Five months after the writing,
the Town wrote in a report that Alston himself or a member of
a neighboring fraternity could have written the word.
Id. at ¶ 211. However, the Board knew this was
false, and that the word was actually intended as retaliation
for the lawsuit Alston had filed. Id. at ¶ 212.

On
January 6, 2014, the Town's psychiatrist concluded Alston
posed no threat to workplace safety. Id. at ¶
216. However, in May 2014 the Town "falsely determined
that Mr. Alston had violated the workplace safety
policy." Id. at ¶ 217. The Town placed
Alston on unpaid leave. Id. at ¶ 218. The Union
did not object to this or file a grievance, and it "did
not object to the finding of a violation, did not attempt to
negotiate on behalf of Mr. Alston, and did not seek injured
on duty status for Mr. Alston." Id. The Town
conditioned Alston's return to duty upon accepting
"abusive and onerous conditions designed to protect it
in litigation and to leave the impression that [Alston] was
to blame for hostility he encountered in the fire
house." Id. at ¶ 219.

The
Town also obtained Alston's medical records through his
Superior Court case; the records indicated some cocaine use
prior to December 2011. Id. at ¶220. Based on
these records, the Town instructed the Town psychiatrist to
conduct an additional exam including this information.
Id. at ¶ 221. Further, the Town "leaked
the information in Mr. Alston's file" to defendant
Spiegel and "others." Id. at ¶ 222.
The Town has no written substance abuse policy and there was
no indication that Alston continued to use drugs.
Id. at ¶ 223. However, the human resources
director included two years of random drug testing in
Alston's conditions to return to duty. Id. This
was retaliatory and different from the treatment of White
employees. Id.

In
October 2014, Alston used up his remaining sick and leave
time and received his final paycheck. Id. at
¶224. The Union did not contact Alston to check on his
health or wellbeing. Id. at ¶ 224. In November
2014, the human resources director "scheduled a
reasonable accommodation meeting for the purpose of
terminating Mr. Alston." Id. at ¶ 225.
Alston's counsel attempted to schedule a meeting with
Goldstein. Id. at ¶226. In response, assistant
town counsel threatened Alston's counsel via email.
Id. At the end of November, Alston filed a letter
with the Board, asking them to 1) conduct an independent
investigation; 2) grant him a hearing to address his appeal;
3) investigate a recent MCAD finding against the fire chief
and human resources director involving a Jewish firefighter;
4) investigate whether the Town had misled MCAD about its
reasons for requesting anti-discrimination training; and 5)
conduct a racial climate review of the entire department.
Id. at ¶ 227. The Board did none of these
things. Id. at ¶ 228.

In
December 2014, Alston again asked the Board to conduct an
investigation of his case and place him back on
administrative leave. Id. at ¶229. Instead, the
Town retaliated against Alston by providing Spiegel with
Alston's file.[6]Id. at ¶ 230. Spiegel then
intimated to a "supporter" of Alston that there was
damaging information in Alston's file. Id. After
Alston complained, Town counsel spoke to Spiegel and a
witness, and wrote a "sham report" the next day
concluding that Spiegel had not engaged in misconduct.
Id. at ¶ 231.

Alston
and his attorney arranged to inspect his personnel file; when
they arrived, a police detective was present to observe.
Id. at ¶232. After Alston's attorney called
Goldstein, the police detective was removed. Id. In
reviewing his file, Alston noted that information was
missing. Id. at ¶ 233. When he brought this up
to human resources, a specialist reviewed his file with the
police detective. Id. The specialist added a missing
page with redactions "that appeared to have been made
that day by the human resources director, " and Alston
discovered that there were two relevant letters missing from
the file. Id.

In
January 2015, Alston and his attorney met with Goldstein and
town counsel. Id. at ¶ 234. Goldstein admitted
"doubts" about Pender's story, disagreed with
Pender's promotion, and claimed to be powerless with
regard to Spiegel's comments. Id. During the
meeting, town counsel "superfluously repeat[ed] the
phrase 'fucking nigger.'" Id. at ¶
235. The meeting ended when Goldstein perceived that Alston
was threatening him, and left abruptly. Id. at
¶ 236.

Goldstein
threatened to file charges against Alston, but no charges
were actually filed. Id. at ¶¶ 236-37. In
retaliation, the Town circulated a flyer to the police with a
picture of Alston, falsely stating that Alston had threatened
Goldstein and was possibly armed. Id. at ¶ 237.

In
February 2015, Alston had a second fitness-for-duty exam; the
new psychiatrist added conditions "including meeting
with a therapist weekly and a psychiatrist monthly and
releasing them to discuss his treatment with the Town."
Id. at ¶ 238. The Board endorsed the
conditions. Id. Alston refused the conditions, and
asked to meet with the Board and Union, who declined his
requests. Id. at ¶ 239. Alston obtained a
review from an independent psychiatrist, who concluded that
his problems were not "in his head" and required
adjustment of the firehouse environment, not psychiatric
treatment. Id. at ¶ 240. Alston suffered severe
impacts, including divorce, debt, deteriorated health, and
loss of "the job that he loved to do and excelled
at." Id. at ¶ 241.

C.
Plaintiff Juana Baez

Juana
Baez is a Brookline resident from the Dominican Republic who
identifies as Hispanic. Id. at ¶¶ 47, 64,
106. On August 15, 2015, Baez and her newborn baby had just
returned from the hospital. Id. Her baby's
father, Alberto Rodrigo-Torres, parked Baez' car near her
home in an area not marked as a tow zone or fire lane while
he carried groceries upstairs.[7]Id. Baez had a permit to
park on the property. Id. While Rodrigo-Torres was
inside, a White tow truck driver hooked up the car.
Id. Rodrigo-Torres and Baez attempted to persuade
him not to tow the car and offered to pay the "drop
fee." Id. at ¶ 65. The driver cursed and
yelled, refused to let them pay the fee, and opened and
closed his truck door in a way that almost hit Baez and her
baby. Id. Rodrigo-Torres stepped in the bed of the
tow truck to prevent the driver from leaving, and called the
police. Id.

When
the police arrived, they accepted the tow truck driver's
version of events, and took no action towards him.
Id. at ¶¶ 47, 66. Instead, they
handcuffed Rodrigo-Torres and ordered him not to speak
Spanish; demanded a passport from Baez, who is a U.S.
citizen; and falsely accused Baez of breaking the tow
truck's window. Id. at ¶66. Although the
driver accused Rodrigo-Torres of scratching his truck with a
key, the police took no pictures of the alleged damage and
did not examine Rodrigo-Torres' keys. Id. at
¶ 69. Twice, the police left Rodrigo-Torres in a closed
car without air conditioning although the outside temperature
was approximately 85 degrees. Id. at ¶ 70.

Rodrigo-Torres
was charged with malicious destruction of property and Baez
was charged with disorderly conduct. Id. at ¶
67. Rodrigo-Torres' charges remain pending, although no
evidence against him has been produced. Id. at
¶ 71. Baez was summonsed for an arraignment rather than
a show cause hearing, despite the fact that the police did
not witness the disorderly conduct reported by the tow truck
driver. Id. at ¶ 68. Although the case was
immediately dismissed, Baez had to pay court costs of $150.
Id. at ¶ 71. Further, the police referred Baez
to the Department of Children & Families
("DCF"). Id. at ¶ 68. The DCF worker
closed the referral, "telling Baez that her problem with
the Brookline police was the color of her skin."
Id. at ¶ 71. Baez suffered severe emotional
distress, and is now afraid of the police. Id. at
¶ 72.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In
November 2015, Baez wrote to the Board complaining about the
police&#39;s treatment of her, and asking that the Town and
the police contact her only through counsel. Id. at
&para;73. The Town Administrator responded that the police
would contact Baez directly, "[b]ecause that&#39;s the
way we do it." Id. at &para; 74. On January 20,
2016, [8] after Baez spoke at a public Board meeting
about the incident, the police asked Baez to sign a release
form. Id. at ¶ 75. Although the ...

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